as-applied constitutional challenge in Illinois

2026People v. Thompson, 2015 IL 118151, ¶¶ 36-37 ; see also People v. Holman, 2017 IL 120655, ¶ 32 (“a defendant must present an as-applied constitutional challenge to the trial court in order to create a sufficiently developed record”), overruled on other grounds by People v. Wilson, 2023 IL 127666 .

2026Relying on Thompson, the State responds that defendant’s as-applied challenge is forfeited because he failed to raise the issue before the trial court and the record on appeal is insufficient for the claim to be adjudicated on the merits. ¶ 17 While facial challenges to a statute may be raised at any time, the “void ab initio doctrine does not apply to an as-applied constitutional challenge.” (Emphasis omitted.) Thompson, 2015 IL 118151, ¶ 32 .

2026While young adults do not benefit directly from Miller, our supreme court has - 10 - No. 1-23-2277 “recognized the science that helped form the basis for the Miller decision may assist emerging adult defendants in supporting an as-applied, proportionate penalties clause challenge.” Spencer, 2025 IL 130015, ¶ 34 (citing Harris, 2018 IL 121932, ¶ 46 ). ¶ 25 “[T]o establish an as-applied constitutional challenge to his or her life sentence based on Miller principles, a young adult offender is required to allege and ultimately demonstrate that (1) at the time of the commission of the underlying of

2025But, as Landerman explained, “This argument is better suited to postconviction proceedings, where defendant may present any evidence that he believes counsel should have offered in support of an as-applied constitutional challenge to his sentence.” Landerman, 2018 IL App (3d) 150684, ¶ 57 ; see Harris, 2018 IL 121932, ¶ 48 . ¶ 45 Gates and Estrada do not convince us otherwise.

2025See People v. House, 2021 IL 125124, ¶ 31 (holding the appellate court erred when addressing an as-applied constitutional challenge pursuant to the proportionate penalties clause of the Illinois Constitution (Ill.

2024“Therefore, defendant has forfeited his as-applied constitutional challenge to his unlawful possession of a weapon by a felon conviction by raising it for the first time on appeal.” Id. ¶ 18 ; see People v. House, 2021 IL 125124, ¶ 31 (holding the appellate court erred when addressing an as-applied constitutional challenge pursuant to the proportionate penalties clause of the Illinois Constitution without a developed evidentiary record or factual findings). ¶ 50 C.

2026Even nonviolent felons are excluded from the second amendment’s protections.” Id.; see Brooks, 2023 IL App (1st) 200435, ¶¶ 100-05 (rejecting an as- applied challenge to the armed habitual criminal statute and stating “that both the founding-era historical record and Supreme Court precedent support the ability of our legislature to prohibit firearm possession by people who have demonstrated disrespect for legal norms of society” (internal quotation marks omitted)); People v. Gray, 2025 IL App (1st) 191086-B, ¶ 23 (rejecting an as-applied constitutional challenge to the armed habitual criminal

2025Further, he asks that in the event this court finds the record is insufficient, we remand the matter to the trial court for further proceedings on the basis that his trial counsel was ineffective for failing to raise his as-applied challenge below. ¶ 41 “Ordinarily, a defendant must present an as-applied constitutional challenge to a statute at trial in order to develop the record as it pertains to the specific facts and circumstances of his claim.” Brooks, 2023 IL App (1st) 200435, ¶ 57 (citing People v. Thompson, 2015 IL 118151, ¶ 37 ).

2021Thompson, 2015 IL 118151, ¶ 38 ; see also Harris, 2018 IL 121932, ¶ 39 (defendant’s presentence investigation report did not create a sufficient record to analyze defendant’s as-applied constitutional claim in lieu of an evidentiary hearing); People v. Bingham, 2018 IL 122008, ¶ 22 (the defendant’s “improper track” in raising an as-applied due process challenge for the first time on the appeal made it “difficult if not impossible to adjudicate the claim”); People v. Rizzo, 2016 IL 118599, ¶ 26 (courts are precluded from making as-applied determinations without the benefit of an evidentiary hea

2018A trial court’s failure to conduct an evidentiary hearing before declaring an as-applied constitutional violation is improper because “[i]n such a factual vacuum, a court is not capable of making an ‘as applied’ determination of unconstitutionality.” Minnis, 2016 IL 119563, ¶ 19 ; see also Rizzo, 2016 IL - 15 - 118599, ¶ 26 (concluding that a circuit court cannot make an as-applied constitutional ruling in the absence of an evidentiary hearing); People v. Mosley, 2015 IL 115872, ¶ 46 (same). ¶ 87 Here, in one of defendants’ responsive pleadings, defendants suggested that “an evidentiary hearin

2023People v. Holman, 2017 IL 120655, ¶¶ 29-32 , overruled on other grounds by People v. Wilson, 2023 IL 127666, ¶ 42 ; People v. Martin, 2018 IL App (1st) 152249, ¶¶ 12-13 (“[W]here the evidentiary record developed below is sufficient, the constitutionality of a statute may be challenged on appeal.”); see, e.g., People v. Robinson, 2011 IL App (1st) 100078, ¶¶ 12, 17, 29 (considering an as-applied constitutional challenge raised for the first time on appeal). ¶ 58 Contrary to the State’s position, this principle is not limited to cases involving as-applied challenges to juvenile sentences under t

2023People v. Holman, 2017 IL 120655, ¶¶ 29-32 , overruled on other grounds by People v. Wilson, 2023 IL 127666, ¶ 42 ; People v. Martin, 2018 IL App (1st) 152249, ¶¶ 12-13 (“[W]here the evidentiary record developed below is sufficient, the constitutionality of a statute may be challenged on appeal.”); see, e.g., People v. Robinson, 2011 IL App (1st) 100078, ¶¶ 12, 17, 29 (considering an as-applied constitutional challenge raised for the first time on appeal). ¶ 58 Contrary to the State’s position, this principle is not limited to cases involving as-applied challenges to juvenile sentences under t

2024This court dismissed the appeal, finding that this was “not the proper forum for defendant to raise his claims and because an as-applied constitutional challenge may not be raised where it is litigated for the first time on review.” Bingham, 2018 IL 122008, ¶ 25 .

2021Thompson, 2015 IL 118151, ¶ 38 ; see also Harris, 2018 IL 121932, ¶ 39 (defendant’s presentence investigation report did not create a sufficient record to analyze defendant’s as-applied constitutional claim in lieu of an evidentiary hearing); People v. Bingham, 2018 IL 122008, ¶ 22 (the defendant’s “improper track” in raising an as-applied due process challenge for the first time on the appeal made it “difficult if not impossible to adjudicate the claim”); People v. Rizzo, 2016 IL 118599, ¶ 26 (courts are precluded from making as-applied determinations without the benefit of an evidentiary hea

2021People v. Mosley, 2015 IL 115872, ¶ 47 (quoting In re Parentage of John M., 212 Ill. 2d 253, 268 (2004)).

2021People v. Mosley, 2015 IL 115872, ¶ 47 (quoting In re Parentage of John M., 212 Ill. 2d 253, 268 (2004)). ¶ 68 In this regard, we find People v. Harris, 2018 IL 121932 , to be dispositive.

2026People v. Thompson, 2015 IL 118151, ¶¶ 36-37 ; see also People v. Holman, 2017 IL 120655, ¶ 32 (“a defendant must present an as-applied constitutional challenge to the trial court in order to create a sufficiently developed record”), overruled on other grounds by People v. Wilson, 2023 IL 127666 .

2025We disagree with the defendant’s interpretation of Holman where the Illinois Supreme Court reiterates the rule set forth in Thompson, “that a defendant must present an as- applied constitutional challenge to the trial court in order to create a sufficiently developed record.” Holman, 2017 IL 120655, ¶ 32 .

2024This court has interpreted Bruen in the context of UUWF and has determined that Bruen does not apply to felons, because the holding was limited to laws affecting “law-abiding citizens.” See People v. Baker, 2023 IL App (1st) 220328, ¶ 37 (rejecting the defendant’s as-applied constitutional challenge to the UUWF statute); see also People v. Mobley, 2023 IL App (1st) 221264 .

2024This court has interpreted Bruen in the context of UUWF and has determined that Bruen does not apply to felons, because the holding was limited to laws affecting “law-abiding citizens.” See People v. Baker, 2023 IL App (1st) 220328, ¶ 37 (rejecting the defendant’s as-applied constitutional challenge to the UUWF statute); see also People v. Mobley, 2023 IL App (1st) 221264, ¶¶ 27-29 (same).

2023People v. Holman, 2017 IL 120655, ¶¶ 29-32 , overruled on other grounds by People v. Wilson, 2023 IL 127666, ¶ 42 ; People v. Martin, 2018 IL App (1st) 152249, ¶¶ 12-13 (“[W]here the evidentiary record developed below is sufficient, the constitutionality of a statute may be challenged on appeal.”); see, e.g., People v. Robinson, 2011 IL App (1st) 100078, ¶¶ 12, 17, 29 (considering an as-applied constitutional challenge raised for the first time on appeal). ¶ 58 Contrary to the State’s position, this principle is not limited to cases involving as-applied challenges to juvenile sentences under t

2023See Martin, 2018 IL App (1st) 152249, ¶ 13 (the defendant’s criminal history, the trial evidence, the facts presented during the sentencing hearing and in the defendant’s PSI were sufficient to review the defendant’s as-applied constitutional challenge to the armed habitual criminal statute). ¶ 52 Turning to the merits, we first reject respondent’s argument that the historical record does not support the age-based restrictions contained in the AUUW and UPF statutes.

2026People v. Thompson, 2015 IL 118151, ¶¶ 36-37 ; see also People v. Holman, 2017 IL 120655, ¶ 32 (“a defendant must present an as-applied constitutional challenge to the trial court in order to create a sufficiently developed record”), overruled on other grounds by People v. Wilson, 2023 IL 127666 .

2024But, citing to - 10 - No. 1-22-1095 People v. Holman, 2017 IL 120655 , overruled on other grounds by People v. Wilson, 2023 IL 127666 , defendant states that an as-applied constitutional challenge may be raised for the first time on appeal when the record is sufficiently developed for this court to review the claim. ¶ 26 In Holman, the defendant appealed from the denial of his pro se petition for leave to file a successive postconviction petition and argued for the first time that his sentence of natural life imprisonment was unconstitutional under recent United States Supreme Court precedent,

2022Id. ¶ 25 In this case, Creighton raised an as-applied constitutional challenge.

2021“A court is not capable of making an ‘as-applied’ determination of unconstitutionality when there has been no evidentiary hearing and no findings of fact. [Citation.] Without an evidentiary record, any finding that a statute - 18 - 2021 IL App (2d) 190234-U is unconstitutional ‘as applied’ is premature.” (Internal quotation marks omitted.) Id. ¶¶ 38-39 (quoting People v. Rizzo, 2016 IL 118599, ¶ 26 ). ¶ 54 Anticipating that this court might find the approach in Harris and the other cases discussed above persuasive, defendant asks us to instead presume prejudice based upon trial counsel’s failu

2019Instead, the supreme court explained that these kind of constitutional issues involved can be brought before “a reviewing court *** (1) through a direct appeal from a case finding a defendant guilty of violating the regulation he [or she] attempts to challenge as unconstitutional, such as the sex offender registration law (see, e.g., People v. Minnis, 2016 IL 119563, ¶¶ 13-17 ), or (2) by filing a civil suit seeking a declaration of unconstitutionality and relief from the classification as well as the burdens of sex offender registration.” Id. ¶ 21. -5­ 1-15-3155 ¶ 16 In sum, “because an as-ap

2018A trial court’s failure to conduct an evidentiary hearing before declaring an as-applied constitutional violation is improper because “[i]n such a factual vacuum, a court is not capable of making an ‘as applied’ determination of unconstitutionality.” Minnis, 2016 IL 119563, ¶ 19 ; see also Rizzo, 2016 IL - 15 - 118599, ¶ 26 (concluding that a circuit court cannot make an as-applied constitutional ruling in the absence of an evidentiary hearing); People v. Mosley, 2015 IL 115872, ¶ 46 (same). ¶ 87 Here, in one of defendants’ responsive pleadings, defendants suggested that “an evidentiary hearin

2018People v. Holman , 2017 IL 120655 , ¶ 32, 418 Ill.Dec. 889 , 91 N.E.3d 849 ; see People v. Gray , 2017 IL 120958 , ¶¶ 55-67, 418 Ill.Dec. 916 , 91 N.E.3d 876 (considering an as-applied constitutional challenge raised for the first time on appeal); Robinson , 2011 IL App (1st) 100078 , ¶¶ 12, 17, 29, 357 Ill.Dec. 872 , 964 N.E.2d 551 (considering facial and as-applied constitutional challenges that were raised for the first time on appeal). ¶ 13 On appeal, defendant's as-applied challenge is based on facts already in the record, i.e. , the age and nature of his felony convictions and his allege

2018People v. Holman , 2017 IL 120655 , ¶ 32, 418 Ill.Dec. 889 , 91 N.E.3d 849 ; see People v. Gray , 2017 IL 120958 , ¶¶ 55-67, 418 Ill.Dec. 916 , 91 N.E.3d 876 (considering an as-applied constitutional challenge raised for the first time on appeal); Robinson , 2011 IL App (1st) 100078 , ¶¶ 12, 17, 29, 357 Ill.Dec. 872 , 964 N.E.2d 551 (considering facial and as-applied constitutional challenges that were raised for the first time on appeal). ¶ 13 On appeal, defendant's as-applied challenge is based on facts already in the record, i.e. , the age and nature of his felony convictions and his allege

2022Trial counsel also did not mount a constitutional challenge to defendant’s life sentence based on defendant’s young age, minimal participation in the offense, and diminished mental capacity, similar to People v. Thompson, 2014 IL App (1st) 121729-U , ¶ 12 and People v. Miller, 202 Ill. 2d 328, 340-43 (2002). ¶ 19 Regarding prejudice, as illustrated by our supreme court’s recent decision in People v. House, 2021 IL 125124, ¶ 31 (finding that a determination on whether defendant’s natural life sentence violated the proportionate penalties clause was inappropriate without a developed record or fa

2015Id. at 335-37 (presented as-applied challenge). ¶ 49 The majority in following Fernandez fails to adhere to the purpose of the Habitual Criminal Act, which even the State acknowledges, is to "punish violent recidivist offenders." (emphasis added.) The presence of violence as justification for the Habitual Criminal Act has long been recognized by this court: "[t]he Act 'is a constitutional exercise of this State's police power to protect our society from habitually violent and heinous criminals.' " (Emphasis added.) People v. 16 No. 1-13-1145 Cummings, 351 Ill.

2026The defendant’s amended motion raised several arguments, including an as-applied constitutional challenge to the sentence because the mandatory minimum 40 year sentence “leaves no discretion to the judge to craft an individualized sentences as required by Miller v. Alabama, 567 U.S. 460 (2012), People v. Buffer, 2019 IL 122327 (2019), and 730 ILCS 5/5-4.5-105.” Additionally, in a separate sentencing memorandum filed October 3, 2022, the defendant argued that, in order to comply with Buffer, the trial court must sentence him to less than 40 years imprisonment; thus, the 40-year mandatory minimu

2024But, citing to - 10 - No. 1-22-1095 People v. Holman, 2017 IL 120655 , overruled on other grounds by People v. Wilson, 2023 IL 127666 , defendant states that an as-applied constitutional challenge may be raised for the first time on appeal when the record is sufficiently developed for this court to review the claim. ¶ 26 In Holman, the defendant appealed from the denial of his pro se petition for leave to file a successive postconviction petition and argued for the first time that his sentence of natural life imprisonment was unconstitutional under recent United States Supreme Court precedent,

2026The defendant’s amended motion raised several arguments, including an as-applied constitutional challenge to the sentence because the mandatory minimum 40 year sentence “leaves no discretion to the judge to craft an individualized sentences as required by Miller v. Alabama, 567 U.S. 460 (2012), People v. Buffer, 2019 IL 122327 (2019), and 730 ILCS 5/5-4.5-105.” Additionally, in a separate sentencing memorandum filed October 3, 2022, the defendant argued that, in order to comply with Buffer, the trial court must sentence him to less than 40 years imprisonment; thus, the 40-year mandatory minimu

2022The Illinois Supreme Court later determined that “to prevail on a claim based on Miller and its progeny, a defendant sentenced for an offense committed while a juvenile must show that (1) the defendant was subject to a life sentence, mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to consider youth and its attendant characteristics in imposing the sentence.” People v. Buffer, 2019 IL 122327, ¶ 27 . ¶ 29 Further, “[a]lthough Miller and its progeny directly apply to only offenders under the age of 18, our supreme court has recognized that young adult offender

2026In Baker, 2023 IL App (1st) 220328, ¶ 2 , our colleagues in the First District considered a defendant’s as-applied constitutional challenge to the unlawful use of a weapon by a felon statute, the same statute at issue in this case.

2024The People ¶ 20 In People v. Baker, 2023 IL App (1st) 220328, ¶ 37 , the defendant raised an as-applied constitutional challenge to section 24-1.1(a), relying on Bruen.

2020The Harris court agreed with those decisions and the appellate court and declared, “for sentencing purposes, the age of 18 marks the present line between juveniles and adults.” Id. ¶ 23 On the other hand, the Harris court declined to address the defendant’s as-applied constitutional challenge based on the Illinois Constitution’s proportionate penalties clause because it was premature.

2020The Harris court agreed with those decisions and the appellate court and declared, “for sentencing purposes, the age of 18 marks the present line between juveniles and adults.” Id. ¶ 23 On the other hand, the Harris court declined to address the defendant’s as-applied constitutional challenge based on the Illinois Constitution’s proportionate penalties clause because it was premature.

2026Hartrich v. 2010 Harley-Davidson, 2018 IL 121636, ¶ 13 (while an as-applied constitutional challenge is reviewed de novo, “[w]e will, of course, continue to give deference to the trial court’s underlying credibility and factual findings, reversing them only if they are against the manifest weight of the evidence”). ¶ 44 In this case, as noted, defendant raises two challenges to his sentence.

2026Hartrich v. 2010 Harley-Davidson, 2018 IL 121636, ¶ 13 (while an as-applied constitutional challenge is reviewed de novo, “[w]e will, of course, continue to give deference to the trial court’s underlying credibility and factual findings, reversing them only if they are against the manifest weight of the evidence”). ¶ 43 In this case, as noted, defendant raises two challenges to his sentence.

2023People v. 12 Thompson, 2015 IL 118151, ¶ 36 (citing People v. Garvin, 219 Ill. 2d 104, 117 (2006)).

2021“By definition, an as-applied constitutional challenge is dependent on the particular circumstances and facts of the individual defendant or petitioner.” Id.

2020See People v. Vega, 2018 IL App (1st) 160619, ¶ 52 (“An as-applied constitutional challenge is a legal question that we review de novo.”). ¶ 53 Accordingly, we decline to remand this matter for an evidentiary hearing. ¶ 54 CONCLUSION ¶ 55 Based on the foregoing, we affirm the judgment of the trial court. ¶ 56 Affirmed. 7 See, e.g., Harris, 2018 IL 121932, ¶ 38 (stating that a “party raising a facial challenge must establish that the statute is unconstitutional under any possible set of facts”). - 16 - No. 1-17-0310 No. 1-17-0310 Cite as: People v. Thomas, 2020 IL App (1st) 170310 Decision Unde

2020See People v. Vega, 2018 IL App (1st) 160619, ¶ 52 (“An as- applied constitutional challenge is a legal question that we review de novo.”). ¶ 53 Accordingly, we decline to remand this matter for an evidentiary hearing. ¶ 54 CONCLUSION ¶ 55 Based on the foregoing, we affirm the judgment of the trial court. ¶ 56 Affirmed. 7 See, e.g., Harris, 2018 IL 121932, ¶ 38 (stating that a “party raising a facial challenge must establish that the statute is unconstitutional under any possible set of facts”). - 10 -

2021Application of Miller to Young Adult Offenders ¶ 42 Although Miller and its progeny directly apply to only offenders under the age of 18, our supreme court has recognized that young adult offenders “may raise an as-applied constitutional challenge in a postconviction petition based on the evolving science on juvenile maturity and brain development which helped form the basis of the Miller decision.” People v. Moore, 2020 IL App (4th) 190528, ¶ 37 (citing People v. Harris, 2018 IL 121932, ¶¶ 46, 48 , 120 N.E.3d 900 ; People v. Thompson, 2015 IL 118151, ¶ 44 , 43 N.E.3d 984 ). -9- “In doing so,

2021Application of Miller to Young Adult Offenders ¶ 42 Although Miller and its progeny directly apply to only offenders under the age of 18, our supreme court has recognized that young adult offenders “may raise an as-applied constitutional challenge in a postconviction petition based on the evolving science on juvenile maturity and brain development which helped form the basis of the Miller decision.” People v. Moore, 2020 IL App (4th) 190528, ¶ 37 (citing People v. Harris, 2018 IL 121932, ¶¶ 46, 48 , 120 N.E.3d 900 ; People v. Thompson, 2015 IL 118151, ¶ 44 , 43 N.E.3d 984 ).

2018While the majority’s reluctance to admit its progressive eradication of the doctrine might be understandable if we were routinely confronted with harsh consequences from its application, that is far from true. “[T]he void ab initio doctrine does not apply to an as-applied constitutional challenge” (emphasis in original) (People v. Thompson, 2015 IL 118151, ¶ 32 ), and facial challenges remain the most difficult constitutional claims to mount (People v. Davis, 2014 IL 115595, ¶ 25 ).

2017While the majority's reluctance to admit its progressive eradication of the doctrine might be understandable if we were routinely confronted with harsh consequences from its application, that is far from true. "[T]he void ab initio doctrine does not apply to an as-applied constitutional challenge" (emphasis in original) ( People v. Thompson , 2015 IL 118151 , ¶ 32, 398 Ill.Dec. 74 , 43 N.E.3d 984 ), and facial challenges remain the most difficult constitutional claims to mount ( People v. Davis , 2014 IL 115595 , ¶ 25, 379 Ill.Dec. 381 , 6 N.E.3d 709 ).

2026While young adults do not benefit directly from Miller, our supreme court has - 10 - No. 1-23-2277 “recognized the science that helped form the basis for the Miller decision may assist emerging adult defendants in supporting an as-applied, proportionate penalties clause challenge.” Spencer, 2025 IL 130015, ¶ 34 (citing Harris, 2018 IL 121932, ¶ 46 ). ¶ 25 “[T]o establish an as-applied constitutional challenge to his or her life sentence based on Miller principles, a young adult offender is required to allege and ultimately demonstrate that (1) at the time of the commission of the underlying of

2025To establish an as-applied constitutional challenge based on the principles of Miller, -8- “a young adult offender is required to allege and ultimately demonstrate that (1) at the time of the commission of the underlying offense, his or her own specific characteristics—those related to youth, level of maturity, and brain development—placed him or her in the same category as juvenile offenders described in Miller and (2) his or her sentencing was not Miller compliant, in that a life sentence was imposed without regard for the offender’s youth and its attendant characteristics.” People v. Cortez

2026“An as-applied constitutional challenge is a legal question that we review de novo.” People v. Spencer, 2025 IL 130015, ¶ 25 . ¶ 147 Here, the trial court sentenced defendant pursuant to section 5-8-1(a)(1)(c)(ii) of the Unified Code (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2024)).

2026While young adults do not benefit directly from Miller, our supreme court has - 10 - No. 1-23-2277 “recognized the science that helped form the basis for the Miller decision may assist emerging adult defendants in supporting an as-applied, proportionate penalties clause challenge.” Spencer, 2025 IL 130015, ¶ 34 (citing Harris, 2018 IL 121932, ¶ 46 ). ¶ 25 “[T]o establish an as-applied constitutional challenge to his or her life sentence based on Miller principles, a young adult offender is required to allege and ultimately demonstrate that (1) at the time of the commission of the underlying of